University of Macerata
2014-2015
Prof. Avv. Roberto Baratta, PhD
International Organisations Law
2
A brief historical overview of the development of IOs
It was not until the nineteenth century that the IOs were first
established
In that very period the international system of states became
sufficiently stable to allow them to seek forms of cooperation.
After the Westphalian Peace (1648), the practice of convening a
so-called ‘international congress’ became a regular mode of
diplomacy - whenever a problem arose a congress was
convened to discuss it
The most important example is the Congress of Vienna (1815)
which ended the Napoleonic wars and lasted for decades
First examples of cooperation: the Rhine Commission (1815) to
deal with issues of navigation or pollution; other river
Commissions were the Po
Commission (1849) and the
European Commission for the Danube (1849)
Organisations also established by private citizens: Red Cross
(1863)
The Peace Conferences of The Hague was organised in 1899 and
1907. They approached universal participation, with 44 states
As the river commissions showed, states were ready to sacrifice their
sovereignties to favour cooperation in order to solve common problems
Transport and communications were the other areas to manage
common problems (in 1865 the International Telegraphic Union; in 1874
the Universal Postal Union and so forth)
The case of Versailles Congress for the peace settlement following the
First World War - The failure of the League of Nations which had a high
profile political aim: to guarantee peace and the establishment of a
system of collective security
*******
IOs are legal forms of co-operation: international law is not only a law of
co-existence, but becomes also a law of co-operation between States
States are sovereign and powerful, but as the first forms of IOs show,
they are ready sometimes to sacrifice their sovereign prerogatives to
facilitate the management of common problems (Klabbers). IOs are
forms of cooperation to pursue at best results MS alone cannot not
achieve
The League of Nations
The League of Nations was founded on 10 January 1920 at
Geneva. It came into being as a result of the Paris Peace
Conference that ended the First World War.
The President of the USA, Wilson, was convinced that the
only way to avoid another disaster, was to create an
international body whose sole purpose was to maintain
world peace and which would sort out international disputes
as and when they occurred. This would be the task of the
League of Nations
The League of Nation's task was simple - to ensure that war
never broke out again.
So, it was the first IO designed not just to organise cooperation between states, but to pursue a high political aim,
i.e. to guarantee peace and the establishment of a system
of collective security
The League had a virtual unlimited competence of discussing
anything that fell within the field of international relations
At its greatest extent from 28 September 1934 to 23
February 1935, it had 58 members.
The League however failed to bring stability to the world
the founding treaty made no meaningful distinction
between great powers and small powers and made it
possible for its MS to withdraw easily; that option was
used inter alia by Germany and Japan, as did Japan,
Italy, Spain, and others
The USA never joined. The Senate refused to grant
approval to ratify the Covenant. Moreover, the USSR
was not admitted until 1934, and then expelled in 1939
after it invaded Finland.
League ultimately proved incapable of preventing
aggression by the Axis Powers in the 1930s. Germany
withdrew from the League. The onset of the Second
World War showed that the League had failed its
primary purpose, which was to prevent any future world
During the Second World War, in 1944, agreement was
reached on the need to cooperate on monetary and
trade issues, eventually leading to the creation of IMF
and GATT.
In Europe the Council of Europe and the OECD
(Organisation
of
Economic
Cooperation
and
Development) were created
In 1951 the first supranational organisation was founded,
i.e. the European Coal and Steel Community
Due to the Cold War, the North Atlantic Treaty
Organisation and the Warsaw Pact were founded,
while east and west met in the OSCE (Organisation for
Security and Cooperation in Europe)
A number of IOs born in Africa, Asia and Australia
Continents
There is no part of the world which is not covered by the
work of some IOs
Classifying IOs
in terms of stated functions (some are active in economic fields,
others in peace and security and so on) - the EU has developed
from a purely economic organisation into one which pursue also
social and political goals
in terms of membership. Some IOs aspire to almost universal
membership (the UN is a typical example of an open org. inviting
all states to join). Others are regional O., limiting the membership
to states located in a certain geographical region (for instance,
Council of Europe and EU) or to states that have particular
economic ties and interests, such as the Organisation of
Petroleum Exporting Countries (OPEC), its membership spanning
the globe, or the NATO (based on the values of Atlanticism) or the
Organisation Internationale de la Francophonie
in terms of being intergovernmental or supranational organisations. As
to the former, the general rule is that the law-making decisions are
taken by unanimity or consensus; IOs provisions have no direct
effect within the domestic legal order of the MS; MS are not
prevented from legislating in the field in which the IO could
intervene
As to the latter, the EU is the only supranational organisation
that is known worldwide.
The most important EU features are: i) decision making is
based on majority vote; ii) EU law attains supremacy over
conflicting domestic law (Costa v. Enel case); iii) much of the
EU law is directly applicable or directly effective in the legal
system of the MS (Van Gend en Loos case); iv) MS have
transferred parts of their sovereignty to the EU so that it
stands above its MS (hence the term supranational); v) that
attribution implies the so-called doctrine of pre-emption: not
only EU law prevails over conflicting internal law, but MS
action is no longer acceptable in some areas; vi) the MS are
no longer in control of the EU destiny, they are no longer
master of the treaties
The EU as a sui generis IO
It cannot be compared to other IOs.
By contrast, there are quite different views:
- Constitutional lawyers are quite willing to see
the EU as a sort of Constitution in progress
beyond the nation states
- Private lawyers prefer to consider EU just as
a form of organising the market across
frontiers; no more implications is perceived in
institutional terms
- Generally for international lawyers EU is a
mere IO, perhaps a sui generis IO, but still an
IO
ECJ Opinion 2/13:
“…the EU is, under international law, precluded
by its very nature from being considered a
State” (para. 156)
“the founding treaties of the EU, unlike ordinary
international treaties, established a new legal
order, possessing its own institutions, for the
benefit of which the MS thereof have limited
their sovereign rights, in ever wider fields,
and the subject of which comprise not only
those States but also their nationals” (para
157)
This “new kind of legal order, the nature of which is peculiar to
the EU” … has “its own institutional framework and founding
principles, a particularly sophisticated institutional structure and
a full set of legal rules to ensure its operations” (para. 158). As
a result:
1. the system of EU competences, as defined by the treaties,
cannot be adversely affected by accession to international
treaties (cf. para. 160);
2. the specific characteristics of the EU, such as the powers of its
institutions, and particularly the ECJ competences according to
Article 344 TFEU, must be preserved (cf. para. 161)
3. the ECJ “must review” whether an international agreement the
EU institutions would like to conclude, is “in conformity … with
the basic constitutional charter, the treaties” (para. 163);
4. the specific characteristics of EU and EU law include those
relating to the constitutional structure of the EU, namely the
principle of conferral of powers and its institutional framework
(paras. 164 and 165)
In the ECJ’s perspective (Opinion 2/13), the EU is not a State; the
specific characteristics arising from the very nature of EU law, are
twelve:
1. EU law stems from an independent source of law, the treaties
(para. 166)
2. the principle of primacy of EU law over the laws of the MS (para.
166)
3. the direct effect of a whole series of EU law provisions to the MS
and their nationals (para. 166)
4. EU law possesses a structured network of principles, rules and
mutually legal relations linking the EU and its MS, and its MS
with each other, which are now engaged in ‘a process of
creating an ever closer union among the peoples of Europe’
(Article 1 TEU) (para. 167)
5. the EU is based on a set of common values (Article 2 TEU) (para
168).
6. That implies and justifies the existence of mutual trust between
the MS that those values will be recognised and, therefore, that
the law of the EU that implements them will be respected (para.
168)
7. At the heart of the EU legal structure are the fundamental
rights recognised by the Charter (para. 169)
8. The autonomy enjoyed by EU law (in relation to both national
law and international law) requires that interpretation of
fundamental rights must be ensured within the framework of the
structure and objectives of the EU (para. 170)
9. Fundamental rights must be respected not only by
institutions, but also by its MS when they implement EU law
(para. 171)
10. Internal market provisions and those concerning citizenship
of the Union, the area of freedom, security and justice, and
competition policy, are “a series of fundamental provisions”
which are “part of the framework of a system that is specific to
the EU", are structures in a way to contribute "to the
implementation of the process of integration that is the raison
d’être of the EU itself” (para 172)
11. According to the principle of sincere cooperation,
MS are obliged to ensure, in their respective territories,
the application and respect for EU law (para. 173)
12. Instrumental for preserving the specific
characteristics and autonomy of the EU legal order, is
its judicial system which is intended to ensure
consistency and uniformity in the interpretation of EU
law
(para.
174).
Therefore,
A) it is for the national courts and tribunals and for the
ECJ to ensure the full application of EU law and to
ensure judicial protection of individual rights under EU
law
(para.
175)
B) the preliminary ruling procedure is the “keystone” of
the judicial system since that procedure has the object
To put it shortly, three macro-elements show the EU
specificity
with
regards
to
other
IOs
1. EU is founded on a set of fundamental rights for the
benefit of EU citizens and individuals, its ultimate goal is in
the long run to integrate in one single entity different
European peoples within the EU supranational legal
framework
2. EU enjoys a complex institutional system which looks like
a state legal system, rather then an IO. EU has an
impressive amount of competences and powers conferred to
it by MS. Accordingly, MS have lost a corresponding
portions
of
national
sovereignty
3. The European Court of Justice (ECJ) has played a pivotal
role in the construction of the EU integration process, as an
autonomous legal order